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That might be enough to satisfy me. However, what's to stop someone from buying the software, installing it, then returning it for a money-back guarantee and still using it? That would be problematic, I think. Still, this would go a long way towards mitigating some of the issues involved.

The penalty needs to be only payable once actual harm or misrepresentation has been demonstrated, (thus preventing your hypothetical) and needs to be a large multiple of the price. That price including any consultancy fees, maintenance contracts and so on, not just the purchase price. This would make people who just release their software for free immune (a large multiple * 0 == 0), but those who run businesses around free software liable.

Free software is one thing, but what about open source? If someone releases free software that has a nasty security hole exposing your credit card data to others, then I would argue that there's a liability issue. If it's also open source, I think that would be a mitigating factor in liability.